By Louis J. Manetti
Attorney, Colidis and Associates, P.C.
In The Argument of an Appeal, 26 ABA J. 895, 895-99 (Dec. 1940), former United States Solicitor General John W. Davis laid out a seminal “Decalogue” of principles to guide oral argument before an appellate court. The article, which was originally an address delivered to the New York City Bar Association on October 22, 1940, has been called “[o]ne of the best, if not the best, single article on appellate arguments[.]” Frederick Wiener, Effective Appellate Advocacy 127 (Revised ed. 2004); see also Seth P. Waxman, In the Shadow of Daniel Webster: Arguing Appeals in the Twenty-First Century, 3 J. App. Prac. & Process 521, 522 n.4 (2001) (calling Davis’ speech a “touchstone” for another well-regarded speech by Justice Robert Jackson and stating that other similar lists have followed).
Davis begins the article by noting, in a cleverly self-deprecating manner, that a discourse on the argument of an appeal would be delivered with superior force from a judge, “who is in his judicial person the target and the trier of the argument[.]” Davis, supra, at 895. He analogizes the art of appellate advocacy to fishing, and offers, “supposing fishes had the gift of speech, who would listen to a fisherman’s weary discourse on . . . all the other tiresome stuff that fishermen talk about, if the fish himself could be induced to give his views on the most effective methods of approach.” Id. (Notably, Appellate Lawyers Association roundtable events offer just that: an opportunity to informally speak with both state and federal judges—in Davis’ vernacular, the fish.) Keeping with the fish analogy, Davis claims that the appellate advocate is constantly angling for the judicial mind, and “[w]hatever tends to attract judicial favor to the advocate’s claim is useful. Whatever repels it is useless or worse.” Id.
Davis assumes for the purposes of his discussion that the briefs have been submitted and the appeal is procedurally at argument. Borrowing a quote from Chief Justice Hughes, he notes that the value of oral argument on appeal is, “a great saving of the time of the court in the examination of extended records and briefs, to obtain the grasp of the case that is made possible by oral discussion and to be able more quickly to separate the wheat from the chaff.” Id. at 896. Davis then sets out ten principles that should govern appellate oral argument.
The first, and “cardinal rule,” Davis espouses is “[c]hange places (in your imagination of course) with the Court.” Id. Judges, he notes, will not have lived with the case like the lawyers have, and simply want to reach a correct conclusion, so the appellate advocate must give them the “implements of decision.” Id. That is, you must ask: If you were the judge, what would you want to know first about the case; in what order would you want the argument to unfold; and what would make your approach to the true solution easier. Id.
Davis’ second rule is “[s]tate first the nature of the case and briefly its prior history.” Id. This point is eminently practical. He explains that by simply mentioning the general legal field that is implicated at the argument’s outset, the judges are able to recall their general knowledge of the topic, bringing the points that follow immediately into focus. Id.
Next, Davis recommends that the advocate “[s]tate the facts.” Id. He advises, “the statement of the facts is not merely a part of the argument, it is more often than not the argument itself. A case well stated is a case far more than half argued.” Id. He surmises, “[e]x facto oritur jus [the law arises from fact], and no court ever forgets it.” Id. Davis suggests “three C’s” guide the advocate in stating the facts—chronology, candor, and clarity. Id. Chronology, he states, is the natural way of telling any story; candor is the “telling the worst as well as the best, since the court has the right to expect it”; and clarity is the supreme virtue in how to communicate thought. Id. He attributes a quote to Daniel Webster that he insists should be on the walls of every law school, courtroom, and law office: The power of clear statement is the great power at the bar. Id.
The fourth principle is “[s]tate the applicable rules of law on which you rely.” Id. Davis reiterates that a correctly composed statement of facts will have done most of the heavy lifting already, and he warns that, however adequate shelter strong prior decisions may convey, “the advocate must be prepared to meet any challenge to the doctrine of the cases on which he relies and to support it by original reasoning.” Id. Next, he advises to “[a]lways go for the jugular vein.” Id. That is, to find the “cardinal point around which lesser points revolve like planets around the sun[.]” Id.; see also Waxman, supra, at 530 (Waxman calls this “planting the kernel,” and advises, “however difficult the kernel may be to discern, and however late it reveals itself [he relays a story about how one time the kernel only became apparent the night before an oral argument], you must have it in mind when you appear before the court.”)
For his sixth principle, Davis insists that the advocate “[r]ejoice when the Court asks questions.” Davis, supra, at 897. First, he states that, if nothing else, it assures the advocate that the court is not comatose. Id. Second, “a question affords you your only chance to penetrate the mind of the court.” Id. He counsels the advocate to not evade or postpone answering questions, no matter how embarrassing or how much it interrupts the thread of the argument. Id. Next, Davis states that advocates should “[r]ead sparingly and only from necessity.” Id. at 898. He stresses eye contact with the judges, and argues that “the speaker does not live who can long hold the attention of any audience without looking it in the face.” Id. Davis’ eighth principle is to “[a]void personalities.” Id. The advocate’s goal is to keep the mind of the court on the issues at hand without distraction, and personal attacks “can irritate, [but] they can never persuade.” Id.
The ninth principle is “[k]now your record from cover to cover.” Id. Davis acknowledges that this advice “might properly have headed the list for it is the sine qua non of all effective argument.” Id. (In the invaluable work Effective Appellate Advocacy, Frederick Wiener characterizes complete knowledge of the record as “the advocate’s secret weapon.” Wiener, supra, at 177.) Davis notes that, in the heat of appellate argument, at any moment the advocate may be called to correct some misstatement of the opposing side, or may be called on to answer a question that will both put the question to rest and enhance the advocate’s credibility with the judges. Davis, supra, at 898. Otherwise admirable arguments, Davis states, have been destroyed because advocates failed to provide apt references to the record. Id.
Finally, the tenth principle Davis espouses is to “[s]it down.” Id. Even with brief page limits and oral argument time restrictions, “[t]he mere fact that you have an allotted time does not constitute a contract with the Court to listen for that length of time.” Id.
For principles that were relayed over 75 years ago, these rules remain practical and valuable guidelines for advocates facing appellate oral argument in 2016.
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